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The Intrusive State: Restrictions on Gender-Affirming Healthcare for Minors, Exceptions to the Doctrine of Parental Consent, and Reliance on Science and Medical Expertise
No full textThe provision of gender-affirming medical care to transgender or gender diverse (“TGD”) youth is currently the subject of substantial controversy despite an overwhelming consensus in the healthcare community as to the safety and potential benefits of recommended treatments. Much of the debate is fueled by misinformation and inaccurate characterization of research and practice. Against this backdrop, twenty-three states enacted restrictions or complete prohibitions on access to gender-affirming medical care for adolescents between 2021 and the time of this writing in early 2024. The policies typically place healthcare practitioners who provide such services at risk of license revocation. Some statutes create rights of enforcement in third parties or the state, some establish criminal penalties, and others restrict financing of services. Minor patients and their parents have sued to prevent enforcement of these policies, alleging violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Many federal and state district courts have issued preliminary injunctions staying enforcement of some or all of the provisions of the reviewed statutes. Some of these injunctions have been reversed or modified on appeal, creating a split in the federal circuits. This Article reviews and examines the enacted state measures and the litigation challenging those policies. It focuses primarily on Due Process Clause challenges, analyzing the issues through the lens of the law governing healthcare decisionmaking for minors. Guided by federal constitutional law, state statutory and case law, scholarly commentary, and the new Restatement of Children and the Law, this Article reviews the doctrine of parental consent and its exceptions. It concludes that the recent state restrictions on access to gender- affirming care for TGD youth do not satisfy the legally recognized exceptions to that doctrine, and that therefore, the intrusions into family decisionmaking authorized by these statutes are unconstitutional under the Due Process Clause. Proponents of these measures reject the scientific basis for the standards of care and the consensus positions of the healthcare community. In their place, the measures’ proponents proffer misinformation and in some instances, disinformation (that is, content disseminated with the intent of creating controversy, confusion, and uncertainty). Of additional concern, some federal appellate courts have given weight to these unsubstantiated assertions and misrepresentations of the scientific literature in reversing lower court decisions that were well-grounded in the science. This phenomenon reflects a broader trend: Politically and ideologically motivated efforts have infused misinformation into public discussions and legal decisionmaking, affecting the outcomes of legal decisions. As the review of the scientific literature within this Article reveals, the measures—not the treatments they restrict—risk substantial harm to a highly vulnerable group of young persons and their families, isolating these individuals and families from much-needed professional sources of treatment and support. Although the denial of needed treatment is the most obvious harm, the infliction of pain on these children and their families through social stigmatization, rejection, and marginalization is among the many ripple effects of these legal measures
Negotiating Pluralism: Dilemmas of Decentralization in the Middle East
Get PDFThis Article explores the potential of decentralized governance and territorial arrangements to address the overlapping governance crises and identity conflicts in the Middle East and North Africa (the “MENA”). Despite an extensive literature on decentralization and federalism in comparative law and politics, few studies have considered such initiatives in this region. By undertaking a qualitative comparison of decentralizing initiatives in four MENA countries—Tunisia, Iran, Syria, and Yemen—this Article provides the first sustained examination of these understudied cases and in the process suggests a variety of region-wide implications.
The cases are generative both in addressing ongoing debates about the merits of decentralization and in suggesting new design solutions for grappling with intertwined crises of conflict and governance. In this Article, we surface five important dynamics .First, we highlight the striking breadth of the local political coalitions that have supported decentralizing reforms—a phenomenon evident both before and after the uprisings and protest movements of the last decade. Second, we point to a paradox at the heart of the MENA region’s approach to decentralizing government. Whereas decentralization has been a leading item on governance reform agendas, the idea of deploying it as a strategy for addressing identity groups’ self- determination demands has tended to be too politically incendiary to allow reasoned public discourse about its merits. In this Article, we offer explanations, rooted in the region’s encounter with colonialism, for why this paradox has emerged and argue that decentralization may have greater potential as a framework for accommodating competing claims to self-determination than as a vehicle for democratization. Third, our cases point to the value of pursuing decentralization through incremental and bottom-up processes, rather than attempting to impose it in one fell swoop. Fourth, we reveal that decentralizing reforms by authoritarian regimes in the region not only do little to advance democratization but may to the contrary help entrench authoritarian rule. Finally, we identify new models for plural territorial arrangements that have emerged out of grassroots, innovative experiments with decentralization. These models, which have emerged in some of the least likely places in the run-up to and even in the midst of brutal conflict , offer a promising path to inclusive governance without revisiting the borders of the states of the region
DACA’s Stratified Tracks for Economic Mobility and Lessons for Addressing Immigrants’ Long-Term Inequality
Get PDFSince 2012, the politically tenuous Deferred Action for Childhood Arrivals (DACA) program has provided temporary deportation relief and work authorization to over eight hundred thirty-five thousand undocumented young people who fit certain criteria. This Essay draws on one hundred fifteen interviews with DACA applicants in California, New York, and Texas during the heyday of the program to better understand its impacts on recipients’ school and work experiences. We confirm many of the key benefits DACA status has provided to recipients, notably opening doors for them educationally and professionally.
However, our research also confirms DACA’s uneven impacts. Those without four-year college degrees have had a harder time leveraging their DACA status overall. For those with four-year college degrees, DACA generally provided a range of new opportunities, allowing them to launch promising professional pathways. Across the board, however, DACA recipients consistently reported discrimination and microaggressions, even in educational and nonprofit work settings. While DACA empowered some to speak up and even exit these environments in search of better opportunities, many still experienced consistent workplace abuses and struggled to obtain raises and promotions. Inadequate social protections also remained a critical concern for all respondents. For example, health insurance was available only to some, depending on state policy, employer benefits, and school settings.
In all, our study’s findings caution against temporary relief as a singularly viable way of addressing immigrant inequality long-term. Instead, we call for a broader vision of immigration reform that focuses also on addressing systemic gaps in the social safety net and the broader history of worker precarity and racial capitalism in the United States. Relief for immigrant illegality is a moral imperative and a critical ingredient, but alone it cannot level the playing field
